Opinion
No. 07-7147.
Filed On: February 29, 2008.
BEFORE: Ginsburg, Rogers, and Griffith, Circuit Judges.
ORDER
Upon consideration of appellant's petition for rehearing and/or clarification filed January 31, 2008, and appellant's supplemental response to the order to show cause, it is.
ORDERED that the petition for rehearing be denied. It is.
FURTHER ORDERED that the petition for clarification be granted. The court concluded it would not be in the interest of justice to transfer this appeal to the Fifth Circuit, see 28 U.S.C. § 1294(1), because appellant's premature notice of appeal did not appear to be valid under Fifth Circuit law. See Propes v. Dretke, 130 Fed. Appx. 654 (5th Cir. 2005) (per curiam) (Texas state prisoner may not proceed in forma pauperis on appeal noticed after magistrate judge issued recommendation but before district court issued final ruling, because report and recommendation of magistrate judge are not appealable); see also United States v. Cooper, 135 F.3d 960, 963 (5th Cir. 1998) ("Because a magistrate judge's report and recommendation can never be a final decision, [the] appeal therefrom was improper."); Altschul v. Johnson, 109 F.3d 768 (5th Cir. 1997) (in habeas case, explaining that "orders of the magistrate judge are not appealable to this court"). Moreover, at the time his appeal was pending in this circuit, appellant already had an appeal pending in the Fifth Circuit.